On November 14, 2013, the United States Citizenship & Immigration Service (“USCIS”) announced a new memorandum clarifying their policy on Visa Waiver Program entrants who are applying for Adjustment of Status to become permanent residents in the United States. The memo, titled “Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program” provides instructions to USCIS officers on when adjudicating permanent residency applications (Form I-485) is appropriate and it amends the Adjudicator’s Field Manual.

The Visa Waiver Program (“VWP”) allows foreign nationals from designated countries to enter the United States for up to 90 days for business or pleasure without obtaining a tourist visa first. A list of the VWP designated countries and information on the Program is provided by the Department of State here.

This memo clarifies that USCIS Officers have discretion to adjudicate an I-485 application for permanent residency based on a petition by an immediate relative* even if the individual entered the US on the Visa Waiver Program and overstayed the amount of time they were authorized to remain in the U.S.

This is a welcome clarification on the part of USCIS, because prior to the issuance of this memo USCIS interpretation on this issue varied among district offices. To read the complete USCIS memo you can visit http://www.uscis.gov/ or click here for the PDF version.

*An immediate relative is a spouse, unmarried child under the age of 21, or parent of a U.S. citizen.